Ex Parte Bernstein et al

Patent Trial and Appeal Board

Oct 20, 2017

14173167 (P.T.A.B. Oct. 20, 2017)

United States Patent and Trademark Office
UNITED STATES DEPARTMENT OF COMMERCE
United States Patent and Trademark Office
Address: COMMISSIONER FOR PATENTS
P.O.Box 1450
Alexandria, Virginia 22313-1450
www.uspto.gov
APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO.
14/173,167 02/05/2014 Howard B. Bernstein CAM920130072USl_8150-0478 3099
73109 7590 10/24/2017
Cuenot, Forsythe & Kim, LLC
20283 State Road 7
Ste. 300
Boca Raton, EL 33498
EXAMINER
MITCHELL, JASON D
ART UNIT PAPER NUMBER
2199
NOTIFICATION DATE DELIVERY MODE
10/24/2017 ELECTRONIC
Please find below and/or attached an Office communication concerning this application or proceeding.
The time period for reply, if any, is set in the attached communication.
Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the
following e-mail address(es):
ibmptomail@iplawpro.com
PTOL-90A (Rev. 04/07)
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE PATENT TRIAL AND APPEAL BOARD
Ex parte HOWARD B. BERNSTEIN, SUJEET MISHRA, and
ROHIT SHETTY
Appeal 2017-005551
Application 14/173,167
Technology Center 2100
Before MARC S. HOFF, JOHNNY A. KUMAR, and
TERRENCE W. McMILLIN, Administrative Patent Judges.
KUMAR, Administrative Patent Judge.
DECISION ON APPEAL
STATEMENT OF CASE
Introduction
Appellants appeal under 35 U.S.C. § 134 from the Final Rejection of
claims 9—241. We have jurisdiction under 35 U.S.C. § 6(b).
We affirm.
1 Claims 1—8 are under separate appeal 2017-005440, for copending
application 14/610,141.
Appeal 2017-005551
Application 14/173,167
Exemplary Claim
Exemplary claim 9 under appeal reads as follows, with emphasis
added to limitations under appeal:
9. A system, comprising:
a processor programmed to initiate executable operations
comprising:
identifying at least a first merge conflict that prevents a
plurality of blocks of program code from properly being
merged;
responsive to identifying the first merge conflict,
identifying a first pattern of a respective portion of at least one
of the blocks of program code that cause the first merge conflict
and determining whether the first pattern matches at least a first
existing merge rule;
responsive to determining that the first pattern matches
the first existing merge rule, validating the first existing merge
rule against a syntax of the portion of at least one of the blocks
of program code that cause the first merge conflict; and
responsive to the first existing merge rule successfully
validating against the syntax of the portion of at least one of the
blocks of program code that cause the first merge conflict,
applying the first existing merge rule to resolve the first merge
conflict.
Rejections
Claims 9-13, 16—21, and 24 are rejected under 35 U.S.C. § 102(a) as
being anticipated by Brosch et al., Mining of Model Repositories for
Decision Support in Model Versioning, Proc. 2nd Europe Workshop on
Model Driven Tool and Process Integration (2009) (hereinafter Brosch I).
Claims 14 and 22 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brosch in view of Brosch et al., Towards End-User
Adaptable Model Versioning: The By-Example Operation Recorder, Proc. of
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Appeal 2017-005551
Application 14/173,167
the 2009 ICSE Workshop on Comparison and Versioning for Software
Models (2009) (hereinafter Brosch II).
Claims 15 and 23 are rejected under 35 U.S.C. § 103(a) as being
unpatentable over Brosch I, Brosch II, in view of Rakesh Agrawal &
Ramakrishnan Srikant, Fast Algorithms for Mining Association Rules, Proc.
of the 20th International Conf. on Very Large Data Bases (1994).
Appellants ’ Contentions
1. Appellants contend that the Examiner erred in rejecting claim 9
because Brosch does not teach the claimed “responsive to identifying the
first merge conflict, identifying a first pattern of a respective portion of at
least one of the blocks of program code that cause the first merge conflict
and determining whether the first pattern matches at least a first existing
merge rule”; and “validating the first existing merge rule against a syntax of
the portion of at least one of the blocks of program code that cause the first
merge conflict.” App. Br. 15—24; Reply Br. 2—10 (emphasis ours).
2. Appellants contend that the Examiner also erred in rejecting
claim 14 because Borsch does not teach the claimed “semantic construct.”
App. Br. 26—34; Reply Br. 10-12 (emphasis ours).
3. Appellants contend that the Examiner also erred in rejecting
claim 15 because Borsch does not teach the claimed “attempting to match
the inference to other stored inferences;” and “responsive to determining
that the inference matches a threshold number of other inferences, presenting
the new merge rule to the user.” App. Br. 35—38; Reply Br. 12—15.
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Appeal 2017-005551
Application 14/173,167
Issues on Appeal
1. Did the Examiner err in rejecting claims 9—13, 16—21, and 24 as
being anticipated because Brosch fails to teach the argued
limitations?
2. Did the Examiner err in rejecting claims 14, 15, 22, and 23 as
being obvious over Brosch and Brosch II/Agarwal?
ANALYSIS
We have reviewed the Examiner’s rejections in light of Appellants’
arguments that the Examiner has erred. We disagree with Appellants’ above
contentions 1—3. We adopt as our own (1) the findings and reasons set forth
by the Examiner in the action from which this appeal is taken and (2) the
reasons set forth by the Examiner in the Examiner’s Answer in response to
Appellants’ Appeal Brief. We concur with the conclusions reached by the
Examiner. We highlight and address specific findings and arguments for
emphasis as follows.
As to Appellants’ above contention 1, we agree with the Examiner’s
findings on Answer 12—22 because Appellants have not cited to explicit
definitions of either "pattern" or "validation" in the Specification that would
distinguish between these terms and preclude the Examiner's broader
reading.
“In the patentability context, claims are to be given their broadest
reasonable interpretations . . . limitations are not to be read into the claims
from the specification.” In re Van Geuns, 988 F.2d 1181, 1184 (Fed. Cir.
1993) (citations omitted). Any special meaning assigned to a term “must be
sufficiently clear in the specification that any departure from common usage
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Appeal 2017-005551
Application 14/173,167
would be so understood by a person of experience in the field of the
invention.” Multiform Desiccants, Inc. v. Medzam, Ltd., 133 F.3d 1473,
1477 (Fed. Cir. 1998/; see also Helmsderfer v. Bobrick Washroom Equip.,
Inc., 527 F.3d 1379, 1381 (Fed. Cir. 2008) (“A patentee may act as its own
lexicographer and assign to a term a unique definition that is different from
its ordinary and customary meaning; however, a patentee must clearly
express that intent in the written description.”). Absent an express intent to
impart a novel meaning to a claim term, the words take on the ordinary and
customary meanings attributed to them by those of ordinary skill in the art.
Brookhill-Wilk 1, LLC v. Intuitive Surgical, Inc., 334 F.3d 1294, 1298 (Fed.
Cir. 2003) (citation omitted).
As to Appellants’ contentions regarding claims 14 and 15 (App. Br.
15—34), the Examiner has rebutted each of those arguments supported by
sufficient evidence. (Ans. 22—29). Therefore, we adopt the Examiner’s
findings and underlying reasoning, which are incorporated herein by
reference.
We have considered Appellants’ Reply Brief but find it unpersuasive
in rebutting the Examiner’s responses.
DECISION
We affirm the Examiner’s § 102 rejection of claims 9—13, 16—21, and
24 and the Examiner’s § 103 rejections of claims 14, 15, 22, and 23.
No time period for taking any subsequent action in connection with
this appeal may be extended under 37 C.F.R. § 1.136(a)(l)(iv).
AFFIRMED
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